Mr. Speaker, I am pleased to take part in the debate at third reading on Bill C-25, an act to amend the National Defence Act and to make consequential amendments to other acts.
Ever since he tabled this bill, the Minister of National Defence has been trying to make us believe that the proposed amendments to the military justice system will ensure greater transparency and improved accountability on the part of his department and the Canadian forces.
It is true that the bill includes some accountability mechanisms. The new grievance board, the new military police complaints commission and the judge advocate general will release annual reports that the Minister of National Defence will then have to table in Parliament. These reports are in addition to those of the Chief of the Defence Staff, the Provost Marshal of the Canadian Forces, and other reports issued by the new monitoring committee set up last fall by the Minister of National Defence.
Soon, we will literally be flooded with annual reports from DND. While the Department of National Defence has long been criticized for lacking transparency, its new will to account to the public is somewhat surprising.
However, in spite of this apparent openness, I have doubts about the objectivity of these various authorities in drafting their reports, considering how close they are to the institution itself. The judge advocate general, the chief of the defence staff and the provost marshal are all members of the military; the members of the monitoring committee are friends of the minister; finally, the chairman of the grievance board will work in close co-operation with the chief of the defence staff.
Under the circumstances, it is reasonable to think that we will not have access to very objective reports. When it comes to transparency, more is required than these reports to make Quebeckers and Canadians stop feeling that the Canadian forces are a state within the state.
Since parliamentarians will not have free access to a critical and impartial analysis of defence issues, they will not be able to properly monitor military affairs.
Admittedly, my comments may seem harsh, but the issue here is not to launch a personal attack on those who will have to submit annual reports, but to be aware of the difficulty of objectively criticizing an institution of which one is a member. Generally, it is preferable to have an impartial outside observer.
This is why, as the Létourneau commission recommended, we believe that an inspector general, working independently from the Canadian armed forces and accountable to Parliament, would ensure a fair, neutral and balanced analysis of the activities of the military, which the present bill will never be able to do.
Not only does the Bloc Quebecois think it would be preferable to have an non-political and independent review body, but all other parties in the House have also expressed the same view.
The Minister of Defence tells us that the Somalia commission of inquiry's recommendation regarding the office of inspector general is being implemented, but in other ways. Among other things, the minister is referring to the review committee he set up last fall.
As we pointed out at second reading of the bill now before us, this committee bears no resemblance to what the Létourneau commission wanted to see. This review committee is composed of eight individuals who will examine the implementation of the changes announced in the department and in the armed forces. These people will have no say, however, regarding the actual conduct of the Canadian armed forces.
In addition, the minister is deliberately not pointing out that this committee has a mandate of only two years. In the end, what will there be for it to do? A few annual reports here and there in order to meet the accountability requirement.
The minister is thus misleading the public and giving the impression that he is agreeing to an inspection. We are not so foolish as to think that there will be a real inspection, independent of military activities.
In his various interventions on Bill C-25, the minister has also said that implementing the amendments to the National Defence Act will increase the fairness and effectiveness of the military justice system. Bloc members have raised several procedural shortcomings in summary trials during second reading of the bill. Time prevented us from discussing the problems associated with the military justice system specific to courts martial. We therefore welcome the opportunity today to comment on this matter.
The National Defence Act provides for four different types of courts martial: the general court martial, the disciplinary court martial, the standing court martial and the special general court martial. The first two are comprised of a military judge and a committee whose membership varies the same way that of a jury does in a civilian criminal court.
The members of this committee are the triers of fact, which means that they determine the guilt or innocence of the accused. It is therefore up to the committee to sentence any accused who has been found guilty. However, this prerogative of sentencing is abolished by the bill before us, and it will fall to the military judge. This amendment brings the military judicial process more in line with ordinary criminal procedure.
Even though it will no longer have authority over sentencing, the committee will nevertheless continue to determine guilt or innocence of the accused. Its judicial independence and impartiality is therefore of paramount importance to the accused.
At present, only commissioned officers can sit as members of general and disciplinary court martial panels. The bill ensures greater openness to non-commissioned members by allowing them to serve on courts martial under certain circumstances. However, since court martial panels remain composed of military personnel, the issue of institutional independence remains.
Can a military tribunal, made up of military personnel and therefore likely to be affected by military culture, really be impartial within the meaning of the Canadian Charter of Rights and Freedoms? Is it really independent enough to render a verdict without reasonable apprehension of bias?
According to the principle of impartiality, a court must not be influenced by either the parties or outside forces, except to the extent that it is convinced by the arguments on the point of law being disputed.
The decision makers' status must guarantee freedom from all outside influence. As we know, military personnel undergo periodic performance evaluations which can impact on their career advancement as well as their pay. A member of the military may therefore find himself in a situation where his performance as part of a court martial can be evaluated. The assessment might, therefore, reflect the satisfaction, or dissatisfaction, of his superior.
It is true, however, that the Queen's Regulations and Orders were amended several years ago to prevent any consideration relating to the performance of a member of the military from affecting his promotion or pay.
Can we reasonably believe, however, that this change in the regulations has had the expected results? In other words, can the person evaluating a member of the military really disregard that individual's performance in a court martial?
Similarly, can a member of a court martial panel really disregard the fact that he is running a risk if he goes against the will of the military establishment?
Despite the changes to the regulations, the risk is still there. What effect does this have? It leaves us with committee members who may not be totally independent and whose judgment may be influenced by outside forces or considerations .
Earlier we pointed out that the bill now allows non-commissioned members to sit on a court martial, under certain circumstances. This opening up of the system to include non-commissioned members is probably the result of the negative image projected by the court martial of certain members of the Airborne Regiment, in connection with the incidents in Somalia.
The public as a whole gained the impression from these events that the lower ranks were the designated fall guys, while the senior ranks escaped unscathed. These cases also left the impression that court martial panels were too heavily stacked with Defence Headquarters brass with interests to protect.
Now they are trying to reverse engines by indicating a willingness to allow non-commissioned members to serve as members of court martial panels. Imagine, however, the pressure there will be on non-commissioned members to go along with the wishes of high ranking officers on court martial panels. Imagine the pressure there will be on non-commissioned members to conform to the military establishment. Imagine the consequences on military careers of stepping out of line.
This is not an attack on the personal integrity of NCMs who serve as members of court martial panels. It must be admitted, however, that the knowledge that a general or disciplinary court martial panel includes a non-commissioned member in a position of vulnerability might cause a reasonable and well-informed person to entertain a reasonable doubt as to the tribunal's impartiality.
At the risk of being repetitious, I wish to say that my remarks are not intended as any sort of attack on soldiers. We must simply be aware of the risk of hierarchical influence.
The U.S. military court of appeal has already described hierarchical influence as the mortal enemy of military justice. Despite the sanctions in the Queen's Regulations and Orders for the Canadian Forces, the problem of undue hierarchical influence remains intact.
This does not mean that a court martial is always impartial, except that the knowledge that a general or disciplinary court martial panel includes soldiers might cause a reasonable and well-informed person to entertain a reasonable doubt as to the tribunal's impartiality.
The very composition of general and disciplinary court martial panels does not meet the requirements of section 11( d ) of the Canadian Charter of Rights and Freedoms.
The bill does not answer concerns about the impartiality of court martials. Under the circumstances, would it not be appropriate to simply abolish the court martial committee, which, one way or another, will always be open to criticism, and replace it with a real jury of civilians, which would be more in keeping with the standards of impartiality and independence guaranteed by the charter?
I would also like to say a few words about the new commission to review complaints about the military police. Under the bill, the commission will examine complaints of misconduct by the military police. It will also look into complaints of interference by members of the Canadian forces and senior officials in the department in its investigations.
At first glance, there is merit in creating a new commission. Unfortunately, the Minister of National Defence missed the opportunity to give this body real powers to intervene, because the conclusions and recommendations of the commission are not binding. In fact, its conclusions and recommendations are reviewed by one of the authorities provided by the legislation. According to the type of complaint and respondent, the reviewing authority will vary. It may be a provost marshal, the chief of staff, the deputy minister or the minister himself. In other words, the final decision on treatment given complaints rests with one of these individuals.
Therefore, the commission has no decision-making authority, since the final decision on the handling of complaints rests either with the military—the provost marshal or the chief of staff—or with the executive—the minister or the deputy minister. The minister therefore considered it enough to create a body similar to the public complaints commission for the Royal Canadian Mounted Police, or its imperfections.
So what exactly is the point of creating such a commission when, in the end, the result is the same? Once again, had the minister really wanted to change things he would have created a commission with real powers instead of trying to fool us by setting up an empty commission?
In closing, I must say that the Bloc Quebecois will not vote in favour of Bill C-25. Contrary to what the minister claimed, we do not think that the amendments made to the bill will ensure transparency in the military justice system and increase its fairness.
On the one hand, the accountability mechanisms provided by the bill will not ensure a better review of the activities of National Defence and the Canadian forces. On the other hand, since the standards that apply to military justice do not offer the same constitutional guarantees as those of civil criminal courts, we cannot support the bill. It is a matter of respect for all military personnel. They, like any other Canadian citizen, have a right to be treated fairly. Otherwise, their right to equality before the law is compromised.